Protecting lies ensures that the truth may be told

If Richard Sanders didn’t know it before, he knows it now — defending the First Amendment usually involves protecting shameful speech and shameless speakers.

The politically correct rarely need First Amendment protection; the warm embrace of the majority nurtures and encourages their speech. The vitality of the First Amendment instead is tested by pornographers, flag-burners and unscrupulous reporters, while the depth of free-speech rights usually is probed by racists, agitators and calculating liars.

It was the calculating liars who recently found themselves seeking Sanders’ protection. Sanders and his colleagues on the Washington state Supreme Court were considering the constitutionality of a state statute that imposed criminal penalties on people who made knowingly or recklessly false statements in political advertising.

A slim majority of the court, led by Sanders, struck down the law, holding that it unconstitutionally chilled protected speech. The deep division on the court, however, prompted the state’s attorney general to ask the court to reconsider its ruling.

The Washington court has not yet ruled on the attorney general’s request, but fundamental First Amendment principles require that the court stand behind its earlier decision.

The tenet at the core of First Amendment jurisprudence is that governmental regulation of “bad” speech will not be permitted if the regulation will at the same time discourage “good” speech. To survive constitutional scrutiny, a law designed to punish speech therefore must be justified by a “compelling” state interest and must be drafted with nearly pinpoint precision so that the threat of punishment does not frighten innocent speakers into steering clear of particular subjects or statements.

As a result, First Amendment law tolerates a significant amount of false, distasteful and mean-spirited speech. Just as the criminal justice system would rather free 100 guilty men than convict even one innocent one, the First Amendment would rather endure a cacophonous marketplace of ideas than create a tranquil one. An essential aspect of this philosophy is the belief that truth is more likely to be divined through a multitude of tongues than through governmental selection of speech or speakers. “To many this is, and always will be, folly,” Judge Learned Hand wrote in 1943, “but we have staked upon it our all.”

The ultimate error of the justices on the Washington court who disagreed with Justice Sanders was their failure to ask whether the statute would inadvertently chill other speech. Justice Philip Talmadge argued vigorously and persuasively that the false speech targeted by the law was not entitled to First Amendment protection. He inexplicably stopped his analysis there, however, without responding to Sanders’ point that the criminalization of false political speech, even knowingly false political speech, would chill both true political speech and protected expressions of opinion.

As much as Talmadge (and perhaps all of us) would like to think that the truth or falsity of political advertising can be easily and conclusively determined, our country’s experiences suggest otherwise. Would it violate the statute for a third-party candidate to claim that the two established parties have concealed evidence of conspiracies in the John F. Kennedy and Martin Luther King assassinations? Would it be illegal for a Democrat to suggest that President Reagan was suffering from the early stages of Alzheimer’s disease during his second term? Would it be reckless and therefore unlawful to run an ad stating that President Clinton and Monica Lewinsky had a sexual relationship?

Unfortunately, these and many other political issues and statements do not lend themselves to easy determinations of truth and falsity. Speakers concerned about potential criminal charges therefore would likely avoid these issues, especially if their political opponents controlled the local prosecutor’s office. A second problem involves the distinction between fact and opinion, which has plagued defamation law for a quarter of a century. A statute that subjected speakers to criminal liability for false statements of fact undoubtedly would discourage many speakers from offering their opinions.

In arguing to uphold the law, Talmadge wrote that the “statute speaks only to one person: the calculating liar, who with clear mind and steadfast, deliberate purpose, coldly composes and diligently distributes knowing lies to effect a desired political result.” In a perfect world, Talmadge would be right, and statutes like the Washington law would purify our political debate without chilling important expression.

Until that perfect world arrives, however, we must continue to tolerate the calculating liars, knowing that their freedom is the best guarantee of our own.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.

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THE EXPERTS

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

Founded by John Seigenthaler, the First Amendment Center is an operating program of the Freedom Forum and is associated with the Newseum and the Diversity Institute. The center has offices in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn., and at the Newseum in Washington, D.C.

The center’s website, www.firstamendmentcenter.org, is one of the most authoritative sources of news, information and commentary in the nation on First Amendment issues. It features daily updates on news about First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues. Support the work of the First Amendment Center.

1 For All

1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

This site no longer is being updated … And the competition itself is moving to Washington, D.C., where the Newseum Institute’s First Amendment Center is co-sponsoring the “Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition,” March 18-19, in partnership with the Columbus School of Law, of the Catholic University of America.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

FIRST AMENDMENT CENTER ARCHIVES

State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
See the reports.